Order 19

Order Details: COPY OF ORDER
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CC No. 1709/2022
HAVELLS INDIA LTD. Vs. MS SHREE PAWAN PUTRA
AGENCIES
23.11.2024
ORDER
1. Vide this order I shall dispose of the application u/s 311 CrPC filed
by the complainant to place on record additional document and to
recall accused for his cross examination.
2. Heard. Perused.
3. To recapitulate, the complainant has filed the present complaint
against accused for dishonor of cheque no. 941653 dt. 25.11.2008
for Rs. 31,01,001/- only, stating that the cheque in question had
been issued towards payment of outstanding liability for supply of
goods by the complainant to the accused.
4. By way of the present application, the complainant seeks to place on
record additional document and to recall accused for cross
examination. It is submitted that the accused was cross examined on
10.08.2016 and stated that he is the proprietor of accused firm and
further stated that it is wrong to suggest that prior to becoming a
proprietorship firm, it was a partnership firm. It is further submitted
that therefore the complainant seeks permission to place on record
Deed of retirement of partnership business dt. 01.04.2007 of the
accused firm. Further, the complainant seeks to place on record
FORM NO. 3CB, 3CD and balance sheet of accused firm as on
31.03.2007. Further, it is submitted by the complainant that during
trial of the present complaint, accused has raised the plea that he has
already made the payment of alleged liability by way of 11 drafts
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and it is the case of the complainant that the alleged 11 drafts were
credited into the accounts of three different entities i.e., M/s. Shri
Hanuman Agencies, M/s. RDM Control and M/s. Central
Distributors and therefore, complainant seeks permission to put on
record statement of account of M/s. Shri Hanuman Agencies and
statement of account of M/s. RDM Control as well as statement of
account of M/s. Central Distributors as maintained in the books of
complainant company. Further, the complainant also seeks
permission to place on record a letter dt. 28.01.2009 issued by M/s.
Shri Hanuman Agencies to the complainant company in order to
show the relationship between M/s. Shri Hanuman Agencies and
accused firm. Further, the complainant also seeks permission to put
on record letter dt. 27.07.2013 on the subject confirmation of
amount remitted by M/s. Shree Pawan Putra Agencies, Patna on
behalf of M/s. Central Distributors. It is the submission of the
complainant that the above stated documents, letters, account
statements came to the knowledge of officials of branch office,
Patna of the complainant company very recently and as soon as the
same were handed over physically to the head office of the
complainant company, the complainant company has filed the
present application. It is further the submission of the complainant
that the present application shall be allowed by this court as the
above stated documents, letters and statement of accounts are
necessary for just and fair adjudication of the present case.
5. The Complainant has relied on following list of judicial
pronouncements in support of his application: -
a. Zahira Habibullah Sheikh and Anr. v. State of Gujarat and Ors.
(2006) 3 SCC 374.
b. Iddar & Ors. V. Aabbida & Anr. (2007) 11 SCC 211.
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c. Chootey Badri Prasad v. State of UP 2006 CrLJ 711(713).
d. S.R. Sinha v. Mrinal Sengupta 2001 SCC (Cri) 1581.
e. Manju Devoi v. State of Rajasthan (2019) 6 SCC 203.
f. Mohanlal S Hamji Sani v. Union of India AIR (1991) SC 1346
g. P. Chagganlal Daga v. M. Sanjai Shaw (2003) 11 SCC 486.
6. Per contra, it is the argument of the accused that the present
application is devoid of any merits and should be dismissed
in
limine as the same has been filed belatedly at the stage of final
argument as an after-thought after part final arguments were heard
by the Ld. Predecessors of this court only to fill in the lacuna in the
complainant’s case. It is further submitted that the case pertains to
the year 2009 in which Notice u/s 251 CrPC was framed in the year
2011 and the accused was crass-examined in 2016 and since then
complainant had several opportunities to produce the alleged
documents before this court but the complainant has disclosed no
cogent reason as to what devoid him of producing the alleged
documents before this court at the time of complainant evidence. It
is further submitted that the accused has led his evidence in
accordance with the case disclosed by the complainant at the time of
trial. It is further submitted on behalf of the accused that allowing
production of alleged documents at this stage would cause severe
prejudice to the rights of the accused as this application is nothing
but an attempt to improve the complainant’s case as an after-
thought. It is further submitted that most of the alleged documents
are photocopies and issued by other agencies and not by the accused
himself and therefore cross examination of the accused on the said
documents cannot lead to fair adjudication of the case. It is further
the submissions of the accused that the present application shall be
dismissed with cost as firstly the application is filed at a belated
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stage only to delay the trial and abuse the process of law and
secondly, it does not pertain to any document necessary for just and
fair adjudication of the present case.
7. In order to enable the court to find out the truth and render just
decision, it becomes mandatory for the court to exercise power u/s
311 CrPC. In
Zahira Habibulla H. Sheikh v. State of Gujarat (2004)
4 SCC 158, it was observed:
“44. … Object of the section is to enable the court to arrive at the
truth irrespective of the fact that the prosecution or the defence has
failed to produce some evidence which is necessary for a just and
proper disposal of the case. The power is exercised and the
evidence is examined neither to help the prosecution nor the
defence, if the court feels that there is necessity to act in terms of
Section 311 but only to subserve the cause of justice and public
interest. It is done with an object of getting the evidence in aid of a
just decision and to uphold the truth.”
8. In
Mannan Shaikh v. State of W.B., (2014) 13 SCC 59 it was held by
the Hon’ble Supreme Court that:
The words “essential to the just decision of the case” are the
keywords. The court must form an opinion that for the just decision
of the case recall or re-examination of the witness is necessary.
Since the power is wide its exercise has to be done with
circumspection. It is trite that wider the power greater is the
responsibility on the courts which exercise it. The exercise of this
power cannot be untrammeled and arbitrary but must be guided
only by the object of arriving at a just decision of the case. It should
not cause prejudice to the accused. It should not permit the
prosecution to fill up the lacuna. Whether recall of a witness is for
filling up of a lacuna or it is for just decision of a case depends on
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the facts and circumstances of each case. In all cases it is likely to be
argued that the prosecution is trying to fill up a lacuna because the
line of demarcation is thin. It is for the court to consider all the
circumstances and decide whether the prayer for recall is genuine.
9. Now coming to the application in hand, the application deserves
dismissal on the following grounds:
i) Firstly, it is not the case of the complainant that the accused firm
was a partnership firm at the time of issuance and drawl of the
cheque in question. In fact, the AR of the complainant has
himself averred in his evidence affidavit that the drawer of the
cheque in question is a proprietorship concern, also it is an
admitted fact that the accused was a proprietorship concern at
the time of presentation and drawl of the cheque in question.
Therefore, the documents alleged to be proving the fact that the
accused firm was a partnership firm prior to becoming a
proprietorship concern does not appear to be necessary or
essential for the just decision of the present case.
ii) Secondly, the accused had taken the plea of defence at the time
service of notice on him under section 258 CrPC itself that the
payment has already been made by the accused to the
complainant by way of 11 demand drafts. Thereafter, the AR of
the complainant was cross-examined and testified that the
payment of 11 demand drafts by the accused were adjusted in the
account of three other entities on the instructions of the accused
and the AR had also furnished documentary proof with respect
to written instructions of the accused in this regard. It is pertinent
to note that the accused has led his defence against the stand of
the accused that the payment of 11 demand drafts of the accused
were adjusted against other entities on the written instructions of
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the accused. At this stage the complainant is raising a fresh case
by seeking to put on the record fresh documents alleging that the
payment of 11 demand drafts was adjusted at the instructions of
other entities. This application thus appears to be nothing but an
attempt to fill in the lacunae in the complainant’s case.
Moreover, the complainant is seeking to recall the accused to
cross-examine on the additional documents whereas none of
these additional documents were issued or executed by the
accused himself thus, cross-examining the accused on these
documents would prejudice the rights of the accused to a fair
trial.
iii) Thirdly, the matter pertains to the year 2009 and is almost 15
years old. Any of the parties cannot be allowed to stretch the
proceedings to an indefinite time, more so, when sufficient
opportunity of cross examination has been already provided to
the complainant in the matter.
10. Accordingly, in view of the above held discussion, the
application of the complainant hereby stands dismissed.
11. Nothing stated hereinabove shall amount to an observation on
the merits of the case.
(Poonam Singh)
JMFC(NI Act)-01/PHC/ND
23.11.2024
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